Charlotte Smith, in our leading Wills, Probate, Tax & Trusts team, looks at proposed changes in relation to Lasting Powers of Attorney (LPAs).
Last month, the Government consultation on ‘Modernising Lasting Powers of Attorney’ was concluded and the findings indicate there must be changes to the Lasting Power of Attorney (LPA) drafting and registration process. The aim was to establish whether there are opportunities in this digital age, to strengthen the process and address the requirements of all parties to the LPAs. The focus very much being on improving accessibility and safeguarding.
A significant agreement was that a digital registration service must be introduced. This may become compulsory for professional applications, although a paper system would remain available for those who require it. This should reduce costs and processing time, possibly by introducing a user-friendly ‘portal’ allowing applicants to add information, correspond more directly with Office of the Public Guardian (OPG) case handlers, deal with errors efficiently and obtain clear updates as to registration progress.
It was also found the OPG should be granted increased powers to run identification checks on the parties to the LPAs, which should reduce the opportunities for abuse or fraud. Whilst they felt a ‘suitability check’ such as a criminal background check could inhibit the donor’s autonomy to choose attorneys or Certificate Providers they trust, regardless of their history or circumstances, it was highlighted that opportunities to safeguard vulnerable donors should always be considered.
The other key proposal to be expanded upon is the objection process when LPAs are being registered. It should be straightforward for objections to be made by concerned individuals or their legal representatives, not only during the statutory waiting period but before and during the drafting of the LPAs. The method of objecting under the new process is yet to be confirmed but it was highlighted once again that robust safeguarding measures are essential to the LPA registration process.
There were a number of other considerations made but ultimately it was decided that they were not going to be considered further at this time. This included compulsory use of a legal professional as a Certificate Provider and to register the LPAs, reintroducing compulsory notification of the registration of LPAs and the removal of the requirement for witnesses to the signatures of the parties to the LPAs, given the weight those witnesses signatures carry.
Changes will be made the Mental Capacity Act 2005 and supporting legislation to reflect these findings, which should result in the process being “easier to access, simpler and even more secure from fraud,” according to the Justice Minister Tom Pursglove.
We look forward to embracing the more progressive, modern approach to advising on LPAs for our clients in the future.
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This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.